Supreme Court of Appeal (SCA) has dismissed the appeal of former Public Protector Busisiwe Mkhwebane with costs, including those of two legal counsels.
Mkhwebane had faced allegations of misconduct and incompetence since her appointment as Public Protector in 2016.
In February 2020, DA chief whip Natasha Mazzone initiated a motion for her removal. It was subsequently accepted by the Speaker of the National Assembly.
An independent panel later recommended that the complaints against her be formally investigated.
After an inquiry, the committee advised that Mkhwebane be removed from her position. The National Assembly approved the recommendation on September 11, 2023 with significant support.
Two days later, the president removed her from office. Kholeka Gcaleka was appointed as her successor for a non-renewable seven-year term. It started on November 1 2023.
According to the court documents, the legal situation became more complicated for the former public protector. This when the DA’s legal representatives questioned the legitimacy of Mkhwebane’s appeal.
The Office of the Public Protector confirmed that it had not authorised the appeal. This led to further disputes regarding the authority of Mkhwebane’s attorney.
The DA’s attorneys later formally challenged Mkhwebane attorney’s authority, asking for proof of representation. In response, the attorney attempted to revise the appeal, naming Mkhwebane as the “Applicant/Appellant”.
“Not having challenged her removal as Public Protector (or even attempted to do so), the recommendations and resolutions culminating in her removal stood. Despite her challenge before the high court having long been overtaken by these events, Ms Mkhwebane persisted in the appeal.
“She nonetheless urged the SCA to enquire into the legality of three interlocutory rulings. These were… made during the enquiry by the 94 Committee. And asked for those rulings to be set aside and substituted,” reads the court documents.
The court further insisted that the enquiry was over and the National Assembly has impeached her. This meant that she has been removed from office and a new Public Protector has been appointed.
The court referred to section 183 of the constitution. It stated that Mkhwebane’s non-renewable seven-year term has come to an end.
Her term has come to an end, highlighting that there could hardly be a challenge to any of the decisions at this point.
The SCA therefore ruled that her reinstatement is therefore both constitutionally and factually unfeasible.
Given these circumstances, a judicial review of section 194 Committee’s decisions would not serve any public interest. This is according to the documents. Consequently, any appeal available to Mkhwebane would have no practical implications.
Mkhwebane expressed disappointment following the judgement. She claimed that all she sought was justice and clarity.
Judge Poonan, who was leading the judgement, displayed arrogance and dismissiveness throughout the proceedings. This according to Mkhwebane.
“The SCA’s decision to strike my appeal marks a significant setback. Not just for me personally. But for all those who believed in my role as a protector of public rights and accountability.
“This experience has been one of immense disappointment and frustration. Revealing a deeply ingrained bias that continues to obstruct genuine justice,” said Mkhwebane.
